Citation Nr: 0940144
Decision Date: 10/22/09 Archive Date: 10/30/09
DOCKET NO. 02-02 625 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to service connection for a right shoulder
disorder
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney
ATTORNEY FOR THE BOARD
G. Jackson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1995 to June
1999.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a January 2001 rating decision
issued by the RO, which in pertinent part denied the Veteran
service connection for a right should disorder.
Most recently, in September 2006, the Board denied the
Veteran's claim for service connection for a right shoulder
disability. The Veteran appealed the decision to the United
States Court of Appeals for Veterans Claim (Court). In
January 2008, the Court granted a Joint Motion to vacate the
September 2006 decision and to remand the matter for further
development.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In the January 2008 Joint Motion, the parties agreed that in
the September 2006 decision, the Board failed to give
adequate reasons and bases to support its decision.
Specifically the parties agreed that the Board failed to
adequately explain why it found a March 2006 VA examination
more probative than a March 2003 VA examination. In this
regard, the parties agreed that the Board did not address the
significance, if any, of the differing diagnoses rendered by
the examiners concerning the right shoulder disorder.
The Board is aware that the Veteran complained of and
received treatment for right shoulder pain during his period
of service. Relevant diagnosis was resolving right shoulder
strain. The Veteran's separation examination contained no
significant findings, notably no findings of a right shoulder
disability.
Post service medical records document the treatment he
received for complaints of right shoulder pain. An October
2000 VA X-ray report and corresponding VA examination found a
radiographically normal right shoulder. In a March 2003 VA
examination, the Veteran was diagnosed with right shoulder
pain. The examiner commented that he had some "chronic
right shoulder rotator cuff and possible bicipital
tendonitis." The examiner opined that the Veteran would
have probably developed right shoulder pain (based on a
history of overhead activities, including overhead
weightlifting); however, the Veteran's service incident
likely played a role in exacerbating his predisposition to
right shoulder pain. A May 2005 MRI report showed minimal
early degenerative change of the acromioclavicular (AC)
joint. There was no impingement or evidence of AC joint
separation. In the March 2006 VA examination report the
Veteran was diagnosed with right shoulder impingement. The
examiner opined that the Veteran's claimed right shoulder
disorder was not likely related to his service incident or
related to his military service.
The parties also agreed that the Board failed to properly
address the lay statements of record which tend to support an
etiological relationship between the Veteran's claimed right
shoulder disorder and his period of service. In this regard,
the parties point out that while not competent to render a
diagnosis or an opinion as to medical causation, laypersons
are certainly competent to report symptoms capable of lay
observation. See Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992); see also Jandreau v. Nicholson, 492 F. 3d.
1372, 1377 (Fed. Cir. 2007).
Given these statements, in light of the varying diagnoses for
the right shoulder disorder, the Board finds that a more
contemporaneous VA examination is necessary to reconcile any
discrepancy with regard to diagnosis and clarify etiology of
the claimed right shoulder disorder.
Accordingly, the case is REMANDED for the following action:
1. A letter should be sent to the
Veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A (West 2002
& Supp. 2009), the need for additional
evidence regarding his claim. This
letter should reflect all appropriate
legal guidance. See e.g.,
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. The AMC/RO should contact the Veteran
and obtain the names and addresses, and
approximate dates of treatment of all
medical care providers, VA and non-VA,
that treated the Veteran for his right
shoulder disorder. After the veteran has
signed the appropriate releases, those
records should be obtained and associated
with the claims folder. All attempts to
procure records should be documented in
the file. If the AMC/RO cannot obtain
records identified by the veteran, a
notation to that effect should be
inserted in the file. The veteran and
his representative are to be notified of
unsuccessful efforts in this regard, in
order to allow the veteran the
opportunity to obtain and submit those
records for VA review.
3. The Veteran should be afforded a VA
orthopedic examination to determine the
nature, extent and likely etiology of the
right shoulder disorder. All indicated
tests and studies are to be performed,
and a comprehensive pre- and post-service
recreational and occupational history are
to be obtained. Prior to the
examination, the claims folder and a copy
of this remand must be made available to
the physician for review of the case. A
notation to the effect that this record
review took place should be included in
the report of the examiner. Based on a
review of the claims file and the
clinical findings of the examination, the
examiner should specifically
identify/diagnosis the Veteran's current
right shoulder disability, if found, and
opine as to whether any such current
right shoulder disability at least as
likely as not (e.g., a 50 percent or
greater likelihood) had its onset in
service or is otherwise etiologically
related to his period of service. The
examiner should address and include
specific discussion of the conflicting
medical evidence of record, namely the
October 2000 VA record (finding no
current disability), March 2003 VA
examination (finding right shoulder
pain/some chronic right shoulder rotator
cuff and possible bicipital tendonitis
with his period of service likely
exacerbating his predisposition to the
shoulder pain), May 2005 MRI report
(showing minimal early degenerative
change of AC joint with no impingement or
AC joint separation) and March 2006 VA
examination (diagnosing right shoulder
impingement but finding it was not likely
related to his service incident or
related to his military service).
A complete rationale must be given for
all opinions and conclusions expressed in
a typewritten report(s).
4. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address
where the notice was sent must be
associated with the claims folder. The
veteran is to be advised that failure to
report for a scheduled VA examination
without good cause shown may have adverse
effects on his claim.
5. After completion of all indicated
development, the Veteran's claim of
service connection for claimed right
shoulder disorder should be readjudicated
in light of all the evidence of record.
If the determination remains adverse to
the Veteran, he and his representative
should be furnished with a Supplemental
Statement of the Case and given an
opportunity to respond thereto.
Thereafter, if indicated, the case should be returned to the
Board for the purpose of appellate disposition.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).